The essential American soul is hard, isolate, stoic, and a killer. It has never yet melted. — D.H. Lawrence

[T]he most important dog that didn’t bark here is presidential power. The court’s opinion did not conclude, or even suggest, that Trump lacked the power as president to issue the order. It didn’t resolve that issue in Trump’s favor; it was just assumed it, since it ruled against him on other ground. …

[T]he court found that the government was not likely to win its case – the standard on a preliminary injunction, before all the evidence has been heard – on whether the executive order gave adequate due process protections to “lawful permanent residents and non-immigrant visaholders” who were barred from the country, again ignoring the fact that the Administration has stopped enforcing the order against lawful permanent residents and the fact that the states were also looking to enforce the injunction on behalf of refugees and others who had yet to be granted visas. The Supreme Court, in its 2015 decision in Kerry v. Din, left open the question of whether there is any due process right for foreign nationals to challenge the denial of a visa; Justices Scalia, Thomas and Chief Justice Roberts thought not, and in that case, Justices Kennedy and Alito didn’t take a position on the issue because they found that adequate due process had been provided in that case. But the Ninth Circuit never addressed why people without an existing visa might have due process rights. …

[T]he court rejected the government’s argument that a refugee ban was urgent, given the lack of any evidence submitted thus far in the case to support urgency. That’s a bit of a Catch-22, since any evidence of imminent national security threats is likely classified and not properly offered to judges and litigants without security clearance, but the Administration should reconsider whether it has evidence of a more broad-based nature to support the breadth of its travel bans. Much of the opinion’s coda deals with how early it is in the case, and how little opportunity any judge has had to give real review to any evidence. If the Trump Administration should learn one lesson from this debacle, it’s that courts won’t accept bluster in place of evidence from an administration with which the judges are disinclined to sympathize. The court reached some bad rulings, but as the saying goes, hard cases make bad law. The Administration should try to avoid letting its cases be so hard when they don’t need to be. But it should also be prepared for the fact that the courts are not likely to give it a fair shake.

As judges on the 9th Circuit Court of Appeals weigh the legality of President Trump’s immigration executive order, a Republican push to split up the controversial court — and shrink its clout — is gaining steam on Capitol Hill.

Republican Sens. Jeff Flake and John McCain of Arizona introduced legislation last month to carve six states out of the San Francisco-based court circuit and create a brand new 12th Circuit.

They argue that the 9th is too big, too liberal and too slow resolving cases. If they succeed, only California, Oregon, Hawaii and two island districts would remain in the 9th’s judicial fiefdom.

Right now, Flake said, the circuit is far too sprawling.

“It represents 20 percent of the population — and 40 percent of the land mass is in that jurisdiction. It’s just too big,” Flake told Fox News on Wednesday. “We have a bedrock principle of swift justice and if you live in Arizona or anywhere in the 9th Circuit, you just don’t have it.”

Flake says it typically takes the court 15 months to hand down a decision.

“It’s far too long,” he added.

Conservatives have mocked the 9th Circuit for years, often calling it the “Nutty 9th” or the “9th Circus,” in part because so many of its rulings have been overturned by the U.S. Supreme Court.

The court has a reputation as one of the most liberal in the country, in large part because of its makeup. Eighteen of the court’s 25 active judges have been appointed by Democrats.

Alvarez claimed to be a retired 25-year Marine Corps veteran, who was many times wounded and had received the nation’s highest award for military valor for serving as a helicopter pilot and rescuing US POWs from behind enemy lines during the War in Vietnam. In fact, Alvarez was never in the military, and was 17 years old when the Vietnam War ended in 1975. (Inland Valley Daily Bulletin link)

In 1977, Alvarez was exposed and was prosecuted and pled guilty under the Stolen Valor Act of 2005, which made the unauthorized claim, display, manufacture, or sale of US military decorations or awards a federal misdemeanor. He was sentenced to more than 400 hours of community service at a veterans hospital and fined $5,000, but then appealed claiming the 2005 law violated his right to free speech (!).

Preposterous, wouldn’t you say?

But not too preposterous to persuade a three-judge panel of the 9th Circus. Judge Milan D. Smith opined, joined by Judge Thomas Nelson, as Josh Gerstein reports, that there is a free speech right to lie.

We have no doubt that society would be better off if Alvarez would stop spreading worthless, ridiculous, and offensive untruths. But, given our historical skepticism of permitting the government to police the line between truth and falsity, and between valuable speech and drivel, we presumptively protect all speech, including false statements, in order that clearly protected speech may flower in the shelter of the First Amendment.

While asserting that they were not endorsing “an unbridled right to lie,” Smith and Nelson said regulations of false speech that have been upheld by the courts were limited to narrow categories where a direct and significant harm was caused. But, they said, the harm caused by people making false statements about military decorations was not evident.

Both of these judges were Bush appointees, leading one to conclude that there must be something in the water out there.

What I mean by “the Kozinski mess” is the total inability of the media — including we, the media, bloggers — to get the basic facts right, and keep the reality in perspective. The real story here is how easily we let such a baseless smear travel – and our need is for a better developed immunity (in the sense of immunity from a virus) from this sort of garbage.

Here are the facts as I’ve been able to tell: For at least a month, a disgruntled litigant, angry at Judge Kozinski (and the Ninth Circuit) has been talking to the media to try to smear Kozinski. Kozinski had sent a link to a file (unrelated to the stuff being reported about) that was stored on a file server maintained by Kozinski’s son, Yale. From that link (and a mistake in how the server was configured), it was possible to determine the directory structure for the server. From that directory structure, it was possible to see likely interesting places to peer. The disgruntled sort did that, and shopped some of what he found to the news sources that are now spreading it.

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Eugene Volokh, who clerked for Judge Kozinski, is even more indignant.

A lawyer (Cyrus Sanai) who has long had a grudge against Judge Kozinski finds out that the Kozinski family has a network server with various files on it. The controversial files on that server aren’t linked to from the Web, and aren’t indexed on search engines. They are generally meant only for family members and a few other people who get specific pointers to them.

But the lawyer figures out the private server’s internal directory structure, rummages around, finds some of the files, and downloads them. And some of the files contain what is basically — if what I saw at Patterico’s site is representative — visual sexual humor. There are some spoofs, for instance of the MasterCard commercials, some puns, some absurdities. Kozinski, or someone in his family, apparently got them sent to him, and decided to save them alongside a bunch of other stuff he found interesting or amusing.

Now the fruit of this disgruntled lawyer’s rummaging through someone else’s personal files somehow becomes a national news story. Why? Because Kozinski is presiding over an obscenity trial? All this stuff — the sort of sexual humor that gets circulated all the time — is not remotely in the same league as what the defendant is being criminally prosecuted for. Recall that the defendant is being prosecuted precisely because his sex-and-defecation movies are so far out even by modern standards of actual pornography. Sanai’s discoveries are similar to someone’s finding that a judge who’s presiding over a drunk driving trial has some screw-top bottles of rosé wine in his cupboard at home, shamelessly displayed in a way that the whole world can see them, if the whole world stands on its tiptoes and peers through a back window. The news value of that would be what, exactly? (Yes, I know screw-tops are becoming legit, but pretend it’s ten years ago.)

OK, people are saying, it was careless of Kozinski not to make sure that the site (which was apparently managed by one of Kozinski’s grown sons) was properly secured. Sure, in retrospect, whenever something leads to this sort of media circus, by definition one would have been wise to take more care to prevent it. But surely even otherwise reasonable people might fail to plan for their enemies’ rummaging around through the files on a private family server.

It’s kind of like your parking your car on the street, locking it, but forgetting to close a back window — or like your throwing out something in the trash without shredding it and leaving the trash cans by the curb. Then someone who has a grudge against you comes by and starts using the open window to rummage around in the stuff you have piled up in the back seat, or starts rummaging through your trash. (Note that to my knowledge such rummaging probably isn’t even a crime in many places.)

Lo and behold, one of the items your enemy finds is a notebook in which you’ve pasted some visual sex jokes that people have sent you. He takes pictures of all the pages and then runs to the newspaper; because of your high-profile job, the newspapers all cover this. Should you have closed the back window? Should you have shredded the stuff before putting in the trash? In retrospect, sure. But how many of us live like that in everything we do?

Jeez, folks, Kozinski has a quirky sense of humor, and keeps some joke pictures and videos on his computer rather than throwing them away. I’m sure they aren’t the kinds of things some people would enjoy seeing. But he wasn’t trying to show them to those people! He was just minding his own business, keeping some files on his own private server. And now it’s a national news story.